Challenges of Nigerian Bar Association in 21st Century

It was with delight that I received the invitation to participate in this summit. Any occasion which would afford me the opportunity of sharing the company of members of this great profession is one that I always look forward to. However this leaders summit, the first of its type in this country gives me much joy than perhaps any other that I have attended under the auspices of the Nigerian Bar Association for a long time. Furthermore, the subject is designed to afford Legal Practitioners an opportunity of sharing ideas with the elders of the BAR on the challenges facing the Legal Profession in Nigeria in the 21st Century. I therefore congratulate our new president, Okey Wali, SAN and his executives for organizing this event not only for their thoughtfulness in formulating a concept like this but also for their doggedness in making it a reality.

As I have been made to understand that each speaker has been allotted a period of 30 minutes to address the Topic of this summit, I will proceed immediately to highlight what I consider the main challenges with which the Legal Profession contends at the moment. However in order to place these challenges in their proper perspectives, it is necessary to firstly highlight a brief history of the Legal Profession.

The legal profession

The legal profession has an ancient history and predilection. The modern legal professional, earning his living by fee paid for legal services became clearly visible in the late Roman Empire. The practice later spread to Europe including England. It has always been the most respected and loved. Although, I read what Nathaniel Hawthorne said in 1804: “I don’t like to be a doctor and live by men’s diseases, nor a lawyer, to live by quarrels”; yet, it is an incontrovertible fact that every family wishes and prays to have a lawyer in the family. Generally, we pray to have a Doctor and a lawyer.

Law – a utility subject

Most people believe that once a person qualifies as a lawyer, he or she must engage in litigation and go to court. The view is not correct.

Law is a utility subject. As a qualified lawyer, one does not have to engage in litigation at all. Most qualified lawyers go into Banking, Industry, Commerce, Teaching, Civil Service and Politics. The fact remains that wherever they are, they are the most respected and successful having regard to their deep learning and training in handling human affairs.

Today most successful politicians, administrators, bankers, bureaucrats, businessmen all over the world are lawyers. In fact, history has shown us that great world leaders like Abraham Lincoln, Bill Clinton, Tony Blair, Benazir Blutto to mention just a few were/are lawyers. In Nigeria at the moment, some of the Governors widely acclaimed to have delivered on the dividends of democracy are Lawyers.

Role of lawyers

It is therefore widely acknowledged that Lawyers have a great role to play in nation building. This is even particularly moreso in Nigeria. In 2003 when I delivered the keynote address at the Annual Conference of the Nigerian Bar Association at Enugu. I addressed this very issue. Permit me to quote from the said Lecture wherein I stated that:

“The role of lawyers in the society

Lawyers, it is often said, are influential agents of change having prominent roles as organisers and spokesmen of civic reform groups.

It is submitted that the above represents the summary of the key enormous burden squarely placed on the shoulders of lawyers by the society. Being “influential agents of change” requires more than mere rhetoric. It involves action, determination, doggedness, grave risk, diligence and, above all, consistency. Changing the status quo in any society, anywhere in history, has never been an easy task. It is often achieved at great cost-sometimes with human blood. But when the change is finally effected, (positive change of course) the aroma of victory travels far and wide. Lawyers, by virtue of their calling, are looked upon by the larger society sometimes for rescue operation (figuratively speaking) especially when the society is in dire straits. A good example is when a nation is undergoing dictatorship (e.g. military) or civilian despotism.

If Nigeria and indeed the world community must succeed in making the transition from traditional to modern society, persons of proven integrity who are endowed with requisite skills and social conscience must initiate reforms and manage the legal systems. Thus, the tasks of reformation and, by necessary implication, development call for lawyers who can effectively serve in the specialised roles of judges, government lawyer, law teacher, private practitioner and at the same time serve as guardians and therefore shapers of processes of law at sub-national (local), national and international levels for the good of all.

The role of lawyers, especially in the area of costs of legal development, can not be overemphasised. This is more profound in developing nations of the world. Often, the assumption has been all too frequent in both developed and developing countries and international organisations that legal systems and institutions can take care of themselves while investments in development can safely by-pass the legal sector.

It is common ground that many countries continue to invest a minimum and marginal fraction of their resources in the administration of justice, the implementation of legislated development programmes, and legal services to those participating in development and legal education. A fresh awareness of the relevance of these features has emerged only as increasing and chronic social violence, political instability and economic stagnation have unmasked the inadequacy of legal systems to cope with the dynamic problems of developing nations. It is therefore part of the role of lawyers – acting through a virile Bar Association like ours to ensure that the costs of the sustained reforms and competent management of a nation’s legal system in its substantive, institutional and cultural aspects be an integral part of any soundly conceived developmental plan, programme and budget.

By the process of law making, a society can give legal personality to the institution; can help to articulate a new or modified role or tasks of an institution, thereby creating corresponding expectations in society and obligations among the members of the institution. Also, through law-making, the society can re-allocate resources to the institution to enable it to perform its new or modified role and carry out its tasks; establish guidelines and standards for the conduct of the institution and its members and of others towards the institution; and monitor the institution’s behaviour, with the prospects of corrective action or of subsequent revision of the law and further adaptation of the institution.”

The bar and myraid of problems

Regrettably, the Bar Association in Nigeria has historically been plagued with a myriad of problems which have prevented it from providing the proper platform for Lawyers to contribute meaningfully towards Nation building. I doubt if anyone can forget the years when the Nigerian Bar Association was comatose owing primarily to the events at its 1992 Annual Conference. It was only through the efforts of some personalities, of which special mention must be made of Chief Adegboyega Awomolo that concerned stakeholders could once again come together under the umbrella of the Nigerian Bar Association to forge a way forward. That we are all gathered here today is a testament to the success of that process.

Life style of judges

As stated earlier, one of the important roles or duties of Lawyers in Nation building is to entrench, strengthen and support the rule of law. One of the avenues through which this can be achieved the most is through Lawyers who get elevated to the Bench. But has the Bench in Nigeria been able to live up to the challenge? In times past Judges used to be highly respected. They were regarded with great awe. It was a rare sight to find Judges walking on the streets or even generally in public places. However things have changed. It is now a common sight to find Judges at social occasions. Due to the economic realities of the time which has affected even Judicial officers, it is not uncommon to find Magistrates riding in Taxis and other forms of public transportation. The point being made here is not that Judges and other Judicial Officers must live in a state of utopia irrespective of the realities of the day. The point is that these developments increasingly expose Judicial Officers to risks and temptations from Litigants and even accused persons standing trial before their courts. Little wonder then that claims of corruption, bias and judicial high-handedness which hitherto were virtually unknown or unheard of in the Country’s Judicial Service System are now a common phenomena.

Quality of judges: appointment of san as judges

Closely related to the above is the quality of persons appointed as Judges. In any clime, Judges should ordinarily be appointed from the best the bar can offer. Judges should be appointed from Lawyers who have had extensive practice before the Courts in Nigeria. But this is not the case in Nigeria. Persons who have had little or no serious practice of law have often been appointed judges. Appointments are not always made on merit but on extrinsic factors such as family and political ties or affiliation. As a result of this the Judiciary and ultimately the Judicial Service System have been the worse for it. Cases now get protracted not always because of the attitude of Lawyers as many have been made to believe, but because of the poor quality of some Judges. It is quite common to get to Court having travelled hundreds of kilometers only to be informed that the Court would not sit. As a way out I suggest a system whereby Judges are appointed from Senior Advocates of Nigeria. This system operates in the United Kingdom wherein Judges are appointed from the body of Queens Counsels (QCs).

The adoption of this system will ensure that only the most experienced and knowledgeable practitioners of law are appointed to the Bench. Our Jurisprudence would surely be the better for it.

Appointment of senior advocates

The question that this proposal will necessarily attract is whether we have enough Senior Advocates of Nigeria to man our courts? This is quite understandable as the total number of Senior Advocates of Nigeria may not be sufficient to offer enough candidates to fill the vacancies which occasionally arise on the Bench of the High Courts of the States, the Federal High Court, High Court of the FCT and the National Industrial Court. The answer to this question is to be found in an overhaul of the current system of appointment of Senior Advocates of Nigeria.

At the moment, the process of appointment of Senior Advocates of Nigeria is restrictive and selective. There is a need to make it more open and transparent. In order to ensure that applicants possess sufficient experience in legal practice, the Legal Practitioners Privileges Committee has put in place certain criteria including handling of a number of cases before the Courts of the land including the Supreme Court as well as other conditions. All applicants who meet these requirements are then shortlisted and subjected to a selective process using parameters which are not clearly defined and indeed have attracted criticism and controversy. In other words, the approach currently adopted is to enquire why someone who ordinarily merits conferment with the rank having satisfied all conditions laid down should be denied that right due only to restriction on the number that must be appointed in a year. This approach ipso facto leaves room for abuse as the factors which dictate who to pick out of qualified applicants is subjective and therefore prone to abuse and or manipulation. I am of the firm belief that all persons who meet the requirements laid down should be conferred with the rank. If 100 Legal Practitioners merit it in a year, let them be so conferred. This way there will be no backlog of applicants. Even if only one qualifies, so be it.

This same view was canvassed by me in a paper presented to the Privileges Committee. In the paper, I quoted extensively the practice in England under which all qualified candidates in a year are conferred with the rank of Queens Counsel. There is no backlog. There are no complaints, no bickering.

Members of privileges committee

Furthermore there is little rationality in appointing Senior Advocates of Nigeria who have just themselves been conferred with the rank into the Legal Practitioners Privileges Committee a year or two earlier. I believe that such newly appointed SANs may not be able to dispassionately discharge the duties of screening or determining which other persons will subsequently be conferred with the rank. Clearly the candidates will be applicants with whom they would have competed recently before being appointed. The possibility that this will affect their judgement cannot be ignored. A SAN who has just himself been conferred with the rank perhaps after 8 previous unsuccessful applications and then appointed into the LPPC may not be favourably disposed to a first time applicant being conferred with the rank even where it is clearly merited. This is just a fact of human nature. Thus it is better to appoint more experienced Senior Advocates of Nigeria into the Committee. I therefore recommend that Senior Advocates who would have served on the Privilege Committee must have had at least ten years experience as Senior Advocate.

Role of lawyers at the bar

Lawyers who choose to remain at the Bar invariably have the Bar as the platform to contribute whatever they can to the development of the country. However the Bar of late would appear to have derailed from this fundamental objective. In several instances, the affairs of the Bar were conducted much like a Political Party, Pressure Group or Trade Union. The Bar involved itself in matters which are clearly outside of its purviews. This opened the Bar to interested Politicians who were bent on making it an appendage of their political parties. Such was the extent of the damage done to the ideals of the Bar that some Lawyers doned their Professional Regalia to stage a protest march to the office of the Governor of Lagos State over a matter that was not connected to the practice of their profession!!!

Furthermore, service on the Executive of the Bar at any level or indeed in any capacity is now regarded as a means to acquire quick popularity and the riches and affluence which many believe comes with it. People who hold such belief are always quick to refer to some of their colleagues who experienced tremendous change in fortune after election into office. The bar is not and should not be regarded as a Political Party or a means to acquire quick wealth. Such views clearly detract from the ability of the body to effectively discharge its duties.

Payment of practising fee

Lawyers on their part must be willing to fulfill their obligations to the Bar Association. Perhaps the most paramount obligation is that by which lawyers are required to pay their annual practice fees. It is however common knowledge that many lawyers fail to honour this sacred obligations. As way out, I suggest that each local branch of the Bar Association be empowered at the start of the second quarter of every year to compile a directory of all lawyers who have paid their practice fees for the year. Each lawyer should then be assigned a number the directory which itself will be circulated to judges within the jurisdiction of the branch. In court, after appearance of their name, the lawyers will be required to also indicate their numbers on the directory to the judge who will then quickly confirm that the name of the legal practitioner concerned is actually on the list. I am certain that this procedure will ensure that lawyers pay up their practice fees. No matter how broad base or wide spread the practice of a lawyer is, I believe he must occasionally make appearances in the jurisdiction in which his firm is based and in which he is well known.

Office of the attorney general of the federation and minister of justice

I am of the view that the office of the Attorney General of the Federation should be separated from that of the Minister of Justice. In most jurisdictions, the Attorney General who is the Chief Law Officer of the country is responsible only for matters related to law. On the other hand, the Minister of Justice is a technocrat responsible for the administration of the Judicial Institutions of the states. I believe the fusion of the two offices in Nigeria has prevented successful occupants of the highly exalted office from efficiently discharging their duties in a manner envisaged by the Constitution and required in nation building process.

Structure of court – need for state to have appellate judiciary

At the moment, all matters before all Courts in Nigeria have the chance to be lifted up to the Supreme Court. Therefore, a suit over a parcel of land in rural area in Oyo State can find its way up to the Supreme Court of Nigeria. To compound matters, the recent amendment to constitution has conferred jurisdiction on the Supreme Court in gubernatorial election petitions which hitherto terminated at the Court of Appeal. The current system has put a lot a strain on the Supreme Court and even the Court of Appeal with the result that the appeal process from the High Court to the Supreme Court on the average take about 10 years. This is tasking on stakeholders including judges, lawyers and the litigants themselves. Convicted persons are most affected as they have to wait endlessly whilst languishing in jail to have their appeal heard and determined.

I suggest therefore, that an amendment be made to the Constitution whereby states would have their own separate and distinct appellate court system. Under this system, all matters before a State High Court which do not have any connection or determination of which will not have any effect on federal laws on the constitution must as a matter of necessity terminate within the appellate court structure of each state. Therefore, the Federal Court of Appeal and the Supreme Court will be left to handle matters which revolve round federal laws and the constitution. That was the position under the First Republican Constitution where Western Nigeria has a strong Court of Appeal. This is also the system that currently operates in the United States wherein the Supreme Court of the United State of America have the power to decide the matter it will or it will not entertain.

Election petition matters

I have always suggested that election petitions tribunals should be constituted mainly by retired judges or referred to the Institute of Arbitrators of Nigeria. I still hold this view. Retired judges will be less prone to temptations of considerations such as career advancement which may affect the judgment and reasoning of serving judges. Furthermore, appointing retired judges will ensure that the dispensation of justice in regular courts is not disrupted while serving judges are on national assignment sitting on nation election tribunal. In the case of arbitration, there will be virtually no need for an appeal.

Sovereign national conference

I am aware some of the suggestions I have proferred above will involve a critical overhaul or restructuring of the political and judicial structures and institutions of the country. The problems afflicting the Judiciary and the Bar cannot be divorced from the virus that has endangered the existence of Nigeria as a corporate body. Lawyers are Nigerians. They live among Nigerians and are affected in large measure by Nigerian factor. Therefore, it is quite necessary that a sovereign national conference be convened to address many of the issues raised in this paper. I have at several occasions advocated this view and I am still of the conviction that it is a view shared by many Nigerian irrespective of political or religious inclination.

Conclusion

Ours is a profession that is very unique in many respect. As I stated earlier, lawyers have a role in nation building. The credible discharge of this role is a topic that should concern all legal practitioners. Therefore, it is my hope that summit of this nature will be a regular occurrence in the activities of the Nigerian Bar Association. We must as a body of professionals remain alive to our duties. Once more, I pay tribute to our newly elected President, Okey Wali, SAN and his team who for the first time have brought about the innovative idea of Leaders Summit. May God bless him and his team. May God bless all of you.